Appellants above-named, being aggrieved by judgment dated 30th November, 1981 of the learned Assistant Sessions Judge, Moro, in Session Case No. 213/79, by which appellants were convicted under section 307, P. P. C. Read with section 34, P. P. C. And sentenced to suffer R.I. For one year each and to pay fine of Its. 5,000 each or in default to suffer further R. I. For one year each have preferred the above appeal, on the following facts and grounds:-
2. Briefly stated the case of the prosecution is, that complainant Muhammad Ishaque had given the hand of his daughter Mst. Hassina to appellant Ghulam Qadir and in exchange he had got sisters of appellants for his brothers. Some days before the incident, there had taken place some differences between the parties, on which appellants had taken away their sister Mst. Rahiman to their house and complainant has detained his daughter Mst. Hassina in his house. On account of these reasons, appellants persons harboured a grudge against the complainant and appellants persons were under impression, that all these affairs have taken place, at the instigation of Mst.
Ashiat wife of complainant.
3. It is further case of the prosecution, that the day before the incident, the complainant has left his wife Mst. Ashiat and his daughter Mst. Hassina in the village of his relative Haji Khuda Bux Dabro, for the purpose of attending marriage ceremony. On the day of incident i.e. 4th October, 1979, in the evening time, when complainant was near the Juwar cultivation of Abdul Rahim, he saw his womenfolk coming back. All of sudden he heard the fire-arm report and the cries. He went running there and found his wife Mst. Ashiat lying injured. The com--plainant found Ghulam Kadir with pistol and Fakir Muhammad with hatchet standing nearby complainant's daughter and brother- in-law told him, that appellant Ghulam Kadir had fired at his wife, which hit her on her leg.
Complainant and witnesses tried to catch hold of the appellants, but they made their escape good. Appellant Ghulam Hyder was also standing with hatchet at some distance. Complainant then removed Mst. Ashiat to Police Station Daulatpur, where he lodged F. I. R.
4. P. W. Deedar Ali, who is A. S. I. P. At Police Station, Daulatpur has carried out the investigation by proceeding to the wardat on next day, which was shown to him by complainant, where he prepared such Mashirnama in presence of Mashirs Muhammad Achar and Muhammad Umar. He then recorded the statements of P. Ws. Mst. Hassina, Khuda Bux, Jumo and Ali Muhammad under section 161, Cr. P. C. He then along--with Mashirs went to the house of appellant persons for their arrest and arrested appellants Ghulam Kadir from his Otaq, under Mashirnama in presence of same Mashirs. He interrogated appellant Ghulam Kadir about pistol, who voluntarily led him and Mashirs to the room of his house, wherefrom he produced country-made pistol of 12 bore, which Investiga--tion Officer had secured under Mashirnama in presence of same Mashirs. Pistol was loaded with empty cartridge. On 9th October, 1979 he arrested appellants Fakiro and Ghulam Hyder under Mashirnama, in presence of same Mashirs. On 10th October, 1979 he recorded the statements of P. W. Mst. Ashiat under section 161, Cr. P. C. After receipt of Medical certificate, he handed over the police papers to S. H. O., who challaned the appellants.
5. Formal charge had been framed against the appellants under section 307134, P. P. C., to which appellants pleaded not guilty and they claimed to be tried.
6. Prosecution in support of its case had examined complainant Muhammad Ishaque as Exh. 10, he had produced copy of F. I. R. As Exh. 11; Mst. Ashiat injured had been examined as Exh. 12 ; Mst.
Hassina and Ali Muhammad, who are eye witnesses have been examined as Exh. 13 and 14 ; P. W.
Muhammad Umar was examined as Mashir of injuries of injured, Mashir of wardat, Mashir of arrest of appellant Ghulam Kadir, Mashir of recovery of pistol from appellant Ghulam Kadir, Mashir of arrest of appellants Fakir Muhammad and Ghulam Hyder, he had produced Mashirnamas as Exhs.
16, 17,18, 19 and 20 ; P. W. Deedar who is Investigation Officer had been examined as Exh. 21 ; P. W.
Mehboob Ali, who is Medical Officer was examined at Exh. 22, he had produced Medical Certificate at Exh. 23 and then prosecution closed its side vide statement Exh. 24:
7. Appellant Ghulam Kadir in his statement under section 342, Cr. P. C., has denied the allegation and has stated, that case against him is false. Nothing was secured from him. He has not led Police and Mashirs to his house and produced country-made pistol P. Ws. Have deposed against him due to enmity. He has further stated, that his two sisters are married with the brothers of complainant and that he has detained them. He was called by Rais Jan Muhammad Dahri for Faisla, but since Rais Jan Muhammad is man of Complainant party, therefore, he did not go on his call. Due to his refusal to go to Rais Jan Muhammad and return his two sisters to complainant, he has been implicated in this case falsely. He is innocent and is victim of enmity.
8. Other two appellants have adopted the same statement as that of main appellant Ghulam Kadir. They had not led any evidence in defence.
9. The learned trial Court taking into consideration the evidence adduced by prosecution convicted and. Sentenced the appellants above--named, as hereinabove mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
10. The learned Advocate for the appellants submitted, that all the three eye-witnesses of the incident are closely related, so also the Mashir of the arrest and recovery of the pistol from the possession of the appellant Ghulam Qadir, and in the face of admitted enmity mentioned nor the F.
I. R. And not disputed by P. Ws. In their statements, the conviction of the appellants was not justified, in view of cases reported in PLD 1981 Kar. 1 and 1973 SC 321. In addition to this the learned Advocate for the appellant submitted, that no empty was recovered from the wardat nor the pistol in question was sent to the Ballistic expert and as such the said recovery could not have been used as corroborative piece of evidence. In support of this the learned Advocate for the appellants relied upon PLD 1968 Lah. 478. As far as the Mashir is concerned, the learned Advocate for the appellants relied upon the Cases reported in 1980 SCMR 225 and 1978 P Cr. L J 52. The learned Advocate for the appellants further submitted, that doctor has stated, that injuries received by the P. W. Was grievous, but has not given any cogent reasons to bring the said injuries within the definition of grievous hurt, under section 320, P. P. C.
11. The learned Advocate appearing for the State on the other hand submitted, that all the three P.
Ws. Have corroborated each other and motive of the incident is also mentioned in the F. I. R., which was lodged promptly. The learned Advocate further submitted, that the evidence of all three eye- witnesses is corroborated by recovery of pistol from the appellant Ghulam Qadir and as such, he fully supports the impugned judgment.
12. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as through impugned judgment and cases cited by the learned Advocate for the appellants.
13. I find great force in the contentions raised by the learned Advocate for the appellants, as all the eye-witnesses are closely related, so also Mashir of the alleged recovery of pistol from the possession of the appellant Ghulam Qadir. In view of the admitted enmity and motive mentioned in A F. I. R. And denied by any P. Ws. The statements of all these P. Ws. Required independent corroboration, which in my opinion is not at all available in the present case. Prosecution for such corroboration has relied upon the fact of alleged recovery of pistol from the possession of the appellant Ghulam Kadir, but the said pistol was not sent to Ballistic expert at all nor any empty was recovered from wardat so as to connect the said pistol with the firing incident in question. In view of this admitted position on record, the cases cited by the learned Advocate for the appellants are fully applicable to the present case, namely PLD 1981 Kar. 1, PLD 1973 SC 321, PLD 1968 Lah. 478, 1980 SCMR 325 and 1976 P Cr. L J 52.
14. In addition to above facts, I find that P. W. Dr. Mehboobali, who examined and gave certificate of injuries in respect of P. W. Mst. Ashiat has given no reasons to bring the said injuries with the provisions of section 320, P. P. C., so as to declare the said injuries as grievous. On the contrary, it is clear from the cross-examination of the said witness, that injuries in question were simple injuries and did not come within purview of section 320, P. P. C.
15. The contentions of the learned Advocate for the State in view of my above observations and conclusions have no force at all. In my opinion prosecution has failed to establish its case, beyond reasonable doubt against all the appellants.
16. Therefore, I allow the above appeal and set aside convictions of the appellants and sentences awarded to them by impugned judgment and acquit them, by giving benefit of doubt and direct, that appellant Ghulam Kadir, who is in judicial custody, be released forthwith, if not required in any other case, as far as appellants Ghulam Hyder and Fakiro are concerned, they are on bail and as such I discharge the bail bonds executed by them.